Federal Court of Australia

Coffs Harbour and District Local Aboriginal Land Council v Attorney‑General of New South Wales [2025] FCA 755

ORDERS

THE COURT DECLARES AND ORDERS THAT:

1.    The non-claimant application is to be determined without a hearing pursuant to s 86G of the Native Title Act 1993 (Cth).

2.    There be a determination that native title does not exist in relation to the areas of land and waters comprised in and known as Lot 304 in Deposited Plan 726479 and Lot 306 in Deposited Plan 726479.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STELLIOS J:

introduction

1    This proceeding concerns a non-claimant application under s 61(1) of the Native Title Act 1993 (Cth) (NTA) for a determination that native title does not exist in the land and waters comprising the application areas.

2    The applicant is a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The application areas cover approximately 8.94 hectares and comprise Lot 304 and Lot 306 in Deposited Plan 726479. The lots are located within the Coffs Harbour City Council local government area (Coffs Harbour LGA) at Sandy Beach in the Parish of Woolgoolga, County of Fitzroy, New South Wales (NSW). The applicant is the registered proprietor of the lots comprising the application areas, holding an estate in fee simple.

3    In its non-claimant application, the applicant sought a determination that native title does not exist in the land and waters comprised in the application areas. In its written submissions, it also submitted that there should be no order as to costs.

4    The first respondent is the Attorney-General of NSW who is a party pursuant to ss 84(4) and 253 of the NTA.

5    The second respondent, NTSCORP Limited, was joined as a party to the proceeding. NTSCORP is funded under s 203FE(1) of the NTA for the purpose of performing the functions of a native title representative body for NSW and the Australian Capital Territory (ACT). The application areas fall within the region for which NTSCORP performs its functions.

6    For the reasons given below, I am satisfied that the applicant has established on the balance of probabilities that native title does not exist in the application areas and, consequently, I am satisfied that the determination sought by the applicant should be made.

the legislative framework

7    Paragraph 13(1)(a) of the NTA provides for the making of an application to the Court under Pt 3 of the NTA for a determination of native title in relation to an area for which there is no approved determination. Subsection 61(1), in Div 1 of Pt 3 of the NTA, provides that such an application may be made by “[a] person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought”. “Interest” is defined in s 253 to include “a legal or equitable estate or interest in the land or waters”.

8    Section 253 also defines the two categories of applications as “claimant applications” and “non-claimant applications”. A “claimant application” is defined to mean “a native title determination application that a native title claim group has authorised to be made”. Native title determination applications that are not claimant applications are “non-claimant applications”.

9    Once filed in the Court, a s 61 application and other specified documents are given to the Native Title Registrar who must take the notification steps prescribed by s 66 of the NTA. Notice must be given to a range of persons, including the Commonwealth, the relevant State or Territory Minister, the relevant representative bodies, and any relevant registered native title claimant, registered native title body corporate and representative Aboriginal/Torres Strait Islander body (s 66(3)). The content of the notice is prescribed by s 66(10). In the case of a non-claimant application, the notice must include a statement to the effect that the area covered by the application may be subject to s 24FA protection, and that a person who wants to be a party in relation to the application must notify the Federal Court within three months of the notification day set out in the notice or otherwise with leave of the Court under s 84(5) of the NTA.

10    At the relevant time for this application, the Native Title (Notices) Determination 2011 (No. 1) (Cth) (2011 Notices Determination) specified the advertising requirements and contents of such notices – the amended determination, the Native Title (Notices) Determination 2024 (Cth), commenced operation on 1 October 2024. Under cll 6(1) and 6(2)(f) of the 2011 Notices Determination, a notice under s 66(3)(d) of the NTA was required to be published:

(a)    by advertisement in 1 or more newspapers that circulate generally throughout the area to which the notice relates or, if the area is an offshore place, the geographical area closest to it that is an onshore place; and

(b)    in a relevant special-interest publication.

11    Subclause 6(5) of the 2011 Notices Determination provides that notices under s 66(3)(d) must include (a) details of the application, (b) a clear description of the area to which the application relates, and (c) a statement of how further information about the application can be obtained. Clause 4 of the 2011 Notices Determination provides:

clear description, for an area, means a description of the area that contains enough information, whether by map drawn to scale or description by other means, to work out:

(a)    the general location of the area; and

(b)    the approximate boundaries of the area.

12    If there is an approved determination of native title in relation to a particular area, the Court must not in relation to that area or any area wholly within that area (a) conduct any proceeding relating to an application for another determination of native title, or (b) make any other determination of native title (except an application to revoke, vary, review or appeal an existing determination): NTA s 68.

13    In the case of unopposed applications, s 86G(1) of the NTA provides that the Court may make an order sought by the applicant without holding a hearing if the period specified in the notice has ended; the Court is satisfied that the order in, or consistent with, the terms sought by the applicant is within the Court’s power; and it appears to the Court appropriate to do so. An application will be unopposed where the other parties do not oppose the order in, or consistent with, the terms sought by the applicant: s 86G(2).

14    Pursuant to s 94A of the NTA, an order in which the Court makes “a determination of native title must set out details of the matters mentioned in section 225” which relevantly provides that “[a] determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters” (emphasis added). As recognised by a Full Court of the Federal Court in Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 233 at [40] (Jagot, Griffiths and Mortimer JJ), s 225 “authorises a determination that native title exists, and it also authorises a determination that native title does not exist”.

15    Finally, s 213(1) of the NTA provides that if it is necessary for the Court “to make a determination of native title, that determination must be made in accordance with the procedures in this Act”.

evidence

16    The following affidavits were relied on by the parties:

(1)     The applicant relied upon the following affidavits:

(a)    affidavit of the applicant’s legal representative, Christopher Malcolm Turner, affirmed on 13 January 2025 (Turner affidavit no 1); and

(b)    affidavit of Christopher Malcolm Turner affirmed on 14 March (Turner affidavit no 2);

(2)    The first respondent relied upon the affidavit of Dominic Gerard Smith, a solicitor employed in the office of the NSW Crown Solicitor, sworn on 21 February 2025 (Smith affidavit); and

(3)    The second respondent relied upon the affidavit of Rachel Jenkins, a solicitor at NTSCORP, affirmed on 7 March 2025 (Jenkins affidavit).

17    The evidence in these affidavits is not the subject of dispute between the parties and, with the exception of the material noted in [21] below, the evidence is supported by the documents annexed to the corresponding affidavits. With the exception of the material noted in [21] below, I accept the evidence deposed by Mr Turner, Mr Smith, and Ms Jenkins. I outline that evidence below.

Turner affidavit no 1

18    The following facts are set out in the Turner affidavit no 1:

(1)    On 26 March 2024, the Registrar received from the Federal Court a copy of the non‍-‍claimant application and accompanying documents pursuant to s 63 of the NTA.

(2)    The Registrar then complied with the notification requirements in s 66 of the NTA. Notice of the non-claimant application was also publicly notified in the Koori Mail on 8 May 2024 and the Coffs Coast News on 10 May 2024. The notification period closed on 21 August 2024.

(3)    On 2 September 2024, the Tribunal notified Mr Turner that a search of the Register of Native Title Claims, that was conducted on 2 September 2024, showed that there were no relevant entries that fell within the external boundary of the non-claimant application.

(4)    On 15 November 2024, Mr Turner requested the Tribunal to undertake an overlap analysis to identify whether there was any overlap between the current non-claimant application areas and any previous approved determination of native title. The search results showed no entries in the Register of Native Title Claims, Native Title Determinations, or Indigenous Land Use Agreements (Registered and notified) databases.

(5)    On 29 November 2024, Mr Turner searched the Tribunal’s determinations database to identify determinations made within the Coffs Harbour LGA. That search revealed that there were no results for those search criteria.

(6)    Mr Turner also accessed the Tribunal’s “Current and Historical Native Title Determination Applications” mapping platform to compare the mapped boundaries of the application areas with the boundaries of historical native title determination applications. A screenshot taken by Mr Turner on 29 November 2024 of the platform’s terms and conditions stated that the map displayed and provided information in respect of current and historical native title determination applications. The screenshot also contained the following disclaimers:

The historical spatial data presented in this map is not actively maintained, and may not be captured to current standards. … Information provided is often supplied by, or based on, data and information from external sources, therefore the NNTT and Registrar cannot guarantee that the information is accurate or up-to-date.

Mr Turner deposed that the map created using the mapping platform showed that the application areas do not overlap the areas of any historical native title determination application, and that the extent of the map shows that there have not been any native title determination applications made over any area within at least 20 kilometres of the application areas.

(7)    Mr Turner applied on the applicant’s behalf for a Historical Land Status Report detailing tenure information for the application areas to be produced by the NSW Department of Planning, Industry, and the Environment. The Historical Land Status Report dated 17 May 2024, and current as of 8 May 2024, relevantly recorded the following:

(a)    There were no Indigenous land use agreements, undetermined Aboriginal land claims, Crown reserves or Crown tenures over the land at the date of the search.

(b)    The areas now comprising Lots 304 and 306 were formerly comprised in Lot 269 in Deposited Plan 41155.

(c)    Part of former Lot 269 now comprising Lot 304 was the subject of permissive occupancy 137801 (formerly permissive occupancy 1981/11 Grafton) for banana cultivation, commencing on 21 November 1980 (PO 137801). The tenure card for PO 137801 contains the following notation: ‘TERMINATED 7 MARCH 2011 NOW LICENCE 483699”. No additional information about licence 483699 is provided in the report.

(d)    Part of Lot 269 now comprising Lot 306 was the subject of permissive occupancy 144769 (formerly permissive occupancy 1981/12 Grafton) for banana cultivation and telephone lines, commencing on 21 November 1980 (PO 144769). While the report indicated that the term of PO 144769 ended on 25 March 2020, there is no additional information about that licence provided in the report.

(8)    On 6 December 2024, Mr Turner created an aerial image of the application areas using Native Title Vision (a mapping tool made available by the Tribunal). The map that was created shows that:

(a)    the parcel to the immediate north of Lot 304 has a large series of sheds on it, and an extensive amount of clearing and cultivation.

(b)    the parcels to the east of the application areas have also been extensively cleared and cultivated; and

(c)    the parcels to the south have a large series of sheds on them and have been extensively cleared.

(9)    On 11 December 2024, Mr Turner generated a property report for the application areas using the NSW Planning Portal Spatial Viewer. That report showed that both parcels are zoned RU2 – Rural Landscape under the Coffs Harbour Local Environment Plan 2013.

(10)    On 12 December 2024, Mr Turner searched the Aboriginal Heritage Information Management System Web Services for both Lots 304 and 306 with a buffer of 200 metres. While the search results set out caveats as to their accuracy, they reported that:

(a)    zero Aboriginal sites had been recorded in or near the specified locations; and

(b)    zero Aboriginal places had been declared in or near the specified locations.

Smith affidavit

19    Having reviewed searches conducted on the Tribunal website in respect of any former native title application in areas surrounding the application areas and the Coffs Harbour LGA, Mr Smith deposed to the following matters:

(1)    On 17 May 1996, the Gumbaingerrii Mudjai Elders of Coffs Harbour filed a native title application over 8.4159 sq km of land and waters within the Coffs Harbour LGA. On 25 June 1999, the Tribunal did not accept the claim for registration. On 30 July 2001, the claim was dismissed. The written description of the area of this claim did not identify the areas claimed by the applicant nor the relevant Parish of Woolgoolga.

(2)    On 16 December 1996, the Gumbaynggirr People filed a native title application over land in Nambucca Heads NSW, which is to the south of Coffs Harbour. On 9 November 1999, this claim was accepted for registration by the Tribunal. On 15 August 2014, the Court determined that native title exists over the claim area: Phyball on Behalf of the Gumbaynggirr People v Attorney-General (NSW) [2014] FCA 851. (I interpolate that the determination of native title was made in terms agreed by the parties). The external boundaries of this claim do not overlap with the areas claimed by the applicant.

(3)    On 24 November 1997, the Gumbangirri People of the NSW New England Tablelands, Members of the Dorodong Association Inc, filed a native title application over 4460.7677 sq km of land and waters within the local government areas of Coffs Harbour City Council, Bellingen Shire Council, Clarence Valley Council, Glen Innes Severn Shire Council, Kempsey Shire Council, Armidale Regional Council and Nambucca Valley Council. The Tribunal accepted this claim for registration on 24 November 1997. On 18 August 2004, the Court struck out the proceeding in Briggs on behalf of the Gumbangirri People v Minister for Lands for the State of NSW [2004] FCA 1056. Mr Smith deposed that, based on the available materials, this claim did not identify the areas claimed by the applicant or the relevant Parish of Woolgoolga.

(4)    On 3 June 1998, the Gumbaynggirr People filed a native title application over land in Nambucca Heads, NSW. On 15 August 2014, the Court in Kelly on behalf of the Gumbaynggirr People v Attorney-General (NSW) [2017] FCA 1459 determined that native title exists in part of the claim area. (I interpolate that the determination of native title was made in terms agreed by the parties). The area claimed by the applicant does not overlap with the area covered by this claim.

(5)    On 3 June 1998, a claimant application was filed on behalf of the Gumbaynggirr People. On 16 April 1999, the claimant application was not accepted for registration by the Tribunal and was subsequently discontinued on 1 August 2001. The areas described in the written description of the claimant application did not identify the area claimed by the applicant nor the relevant Parish of Woolgoolga.

(6)    On 15 August 2016, the Gumbaynggirr People filed a native title application near Nambucca Heads, NSW. On 26 November 2019, the Court in Williams on behalf of the Gumbaynggirr People v Attorney-General (NSW) [2019] FCA 1915 determined that native title exists in part of the application area. (I interpolate that the determination of native title was made in terms agreed by the parties). The area claimed by the applicant does not overlap with the area covered by this claim.

(7)    On 22 December 2017, the Gumbaynggirr People filed a native title application over land within the Clarence Valley Council Local Government area. This area is not proximate to the area claimed by the applicant, the Parish of Woolgoolga, or the Coffs Harbour LGA. (It appears from the evidence that this claim was discontinued in any event on 29 June 2019).

(8)    On 23 July 2018, the Gumbaynggirr People filed a native title application near Nambucca Heads, NSW. The area claimed in this application comprised Lot 1 in Deposited Plan 620967 (less the area subject to the saltwater inlet) and Lot 1 in Deposited Plan 1238642. On 26 November 2019, the Court in Pacey on behalf of the Gumbaynggirr People v Attorney-General (NSW) [2019] FCA 1916 determined that native title exists in the application area. (I interpolate that the determination of native title was made in terms agreed by the parties). The area claimed by the applicant does not overlap with the area covered by this claim.

Jenkins affidavit

20    In the Jenkins affidavit, Ms Jenkins deposed to the following matters:

(1)    Based on her knowledge and experience, NTSCORP staff (Notifications Team) maintain a database of persons and organisations who may assert native title rights and interests in different locations around NSW and the ACT for the purposes of NTSCORP performing its notification function (Notifications Database).

(2)    Ms Jenkins was aware from correspondence with the Notifications Team that, in August 2024, there were only six persons or organisations identified on the Notifications Database as persons who may assert or hold native title rights and interests in relation to the application areas. The Notifications Database contained contact email addresses for each of them.

(3)    On 19 August 2024, Ms Jenkins requested the Notifications Team to notify those six persons of the non-claimant application.

(4)    On 3 May 2024, a copy of the Tribunal’s notice was published in the Koori Mail online and in print.

(5)    On 21 August 2024, Mishka Holt, Principal Solicitor of NTSCORP, advised Ms Jenkins that she had attempted to call the six individuals and organisations contained on the Notifications Database to discuss the non-claimant application. Ms Holt advised that one individual had passed away and that she discussed the application with another individual.

(6)    On 21 August 2024, Ms Jenkins joined a phone call with Ms Holt and another individual who had received the notice.

(7)    Ms Jenkins was informed by Matilda Vaughan, Senior Solicitor at NTSCORP, that no responses had been received to NTSCORP’s notification email.

(8)    Ms Jenkins was informed by Alexander Chalmers, Deputy Principal Solicitor, that NTSCORP had received no requests since August 2024 for facilitation and assistance in relation to the land subject to the non-claimant application in accordance with NTSCORP’s Facilitation and Assistance policy.

(9)    One of the aims of NTSCORP as a respondent to this application is to preserve, as far as possible, the rights of persons who may hold native title in relation to the application areas, and to areas nearby and in the same general region as those areas.

(10)    Ms Jenkins was informed by Dr Ken Lim, NTSCORP Manager of Research, that no anthropological report had been produced by or on behalf of NTSCORP in relation to the application areas, or areas nearby or in the same general region as those areas. In her experience, an anthropological report of this kind would assist NTSCORP in informing the list of persons contained in the Notifications Database.

(11)    NTSCORP’s funding is limited in nature, meaning that the anthropological research undertaken by NTSCORP is prioritised and has primarily been directed towards proceedings which are or were before the Court. Proceedings in priority areas are represented and funded by NTSCORP following the acceptance of a facilitation and assistance request to prepare a native title determination application.

(12)    It is envisaged that NTSCORP will at some stage in the future undertake anthropological research, and potentially facilitate and assist the making of a native title determination application, in relation to areas nearby and in the same general region as the application areas. In this regard, it is likely that laws and customs that cover the application areas also cover the areas nearby and in the same general region as those areas, since the application areas may be part only of a larger area of land over which native title rights and interests may exist.

21    With the exception of the date on which the Tribunal’s notice was published at [20(4)] above, I accept this evidence that has been deposed by Ms Jenkins. The evidence that the notice was published in the Koori Mail on 3 May 2024 does not accord with the evidence provided by Mr Turner that the notice was published in the Koori Mail on 8 May 2024. No copy of a publication on 3 May 2024 was in evidence. The discrepancy is of no consequence.

Turner affidavit no 2

22    In the Turner affidavit no 2, Mr Turner sought to provide further detail to documents exhibited to the Smith affidavit. Mr Turner stated that:

(1)    The documents exhibited to the Smith affidavit, relating to various historical native title claims, do not show the distances between the area of those historical claims and the application areas.

(2)    On 6 March 2025, he accessed the Tribunal’s historical mapping program to create maps showing the boundaries of the claims identified in the Smith affidavit in relation to the boundaries of the application areas.

23    Mr Turner annexed to the affidavit individual maps corresponding to each of the native title claims referred to in the Smith affidavit. Each of the maps was marked up showing the geographical boundaries of the Coffs Harbour and District Local Aboriginal Land Council area, the application areas, and the area of the corresponding native title claim. Each map clearly shows that the geographical boundaries of the application areas are outside the geographical boundaries of native title claims referred to in the Smith affidavit. While Mr Turner does not provide details of the distances between the areas of the respective native title claims and the application areas, it is apparent from the scale indicated on the annexed maps that the closest distance is in excess of 10 kilometres and the greatest distance is in excess of 40 kilometres.

24    Mr Turner also annexed a copy of an aerial image he created on 7 March 2025 using the Spatial Collaboration Portal showing the geographical boundaries of the Coffs Harbour and District Local Aboriginal Land Council as established under the ALRA.

Applicable legal principles

25    The principles applicable to non-claimant applications were considered by a Full Court of the Federal Court in Mace. They were summarised in the following way by Jagot J in Wagonga Local Aboriginal Land Council v Attorney-General (NSW) [2020] FCA 1113 at [10] (with reference to the decision in Mace):

(1)    The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].

(2)    The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42].

(3)    Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].

(4)    The overriding proposition is that each case must be assessed on its own particular facts: [47].

(5)    Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48].

(6)    The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52].

(7)    All issues are to be assessed on the usual standard of proof in civil litigation — proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].

(8)    A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].

(9)    The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]–[60].

(10)    In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].

(11)    In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a “prima facie” position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].

(12)    The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, WLALC.

(13)    In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA: [66].

(14)    No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].

(15)    If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].

(16)    The Court’s task is not to be more or less “stringent” depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82].

(17)    The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97].

26    The following statement of the Full Court in Mace at [94], in relation to the statutory notification process, should also be noted:

evidence of the notification process, and … the absence of any responses, will not be the only evidence before the Court on a non-claimant application. The weight to be given to the absence of any responses will be considered in the context of all the circumstances relating to the land and waters covered by the non-claimant application, including matters such as whether there have been previous claims over the land and waters and the fate of those claims, and what information the relevant representative body (or Land Council) might have about people who may claim connection to the land and waters based on traditional law and custom. There can be no prescription that absence of responses to [Tribunal] notifications should be given great weight, or no weight, or something in between. What is more important, it seems, is that the Court can reasonably expect a representative body for the region in which the non-claimant application land and waters are located to provide some evidence or information to the Court about what it knows, or does not know, about potential native title holders for the claimed area.

Consideration

Preliminary matters

Decision made without a hearing

27    I have dealt with the non-claimant application without holding a hearing pursuant to s 86G of the NTA because:

(1)    the period specified in the s 66 notice has come to an end (ceasing on 21 August 2024);

(2)    the respondents have notified the Court in writing that the application is unopposed;

(3)    the parties agreed that the application could be determined without a hearing and have filed written submissions;

(4)    for the reasons to be given below, I am satisfied that the terms of the order sought are within the power of the Court; and

(5)    I consider it appropriate to do so in the circumstances.

28    Accordingly, I have considered the application on the basis of the filed affidavits and the written submissions of each of the parties.

Applicant eligible to make non-claimant application

29    As indicated, the applicant holds an estate in fee simple in the application areas. That legal interest is subject to any native title rights and interests existing in the lands immediately before the transfer of that fee simple: ALRA s 36(9). Consequently, the applicant is prevented from dealing with the land unless the land is the subject of an approved determination of the native title within the meaning of the NTA: ALRA s 42. That this is a common reason for seeking a determination under the NTA was recognised by the Full Court in Mace at [8], however, that reason does not govern the Court’s approach to be applied: see Wagonga at [10(2)].

30    As the holder of a fee simple in the application areas, the applicant holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought.

31    As at 18 November 2024, no native title claimant application over the areas had been filed. The evidence demonstrates that there is no overlap between the application areas and any previously approved determination of native title or, indeed, any application for a determination of native title of any kind.

32    Accordingly:

(1)    the applicant is eligible to make this non-claimant application under ss 13(1)(a) and 61(1) of the NTA;

(2)    the Court has jurisdiction to hear and determine the application under s 81; and

(3)    s 68 of the NTA does not prevent the Court from considering the application and making a determination.

Notification requirements are satisfied

33    The evidence also demonstrates that the application was made in the prescribed form (s 61(5)) and that the Tribunal’s notification requirements under s 66 of the NTA and cll 6(1), (2)(f) and (5) of the 2011 Notices Determination were satisfied. In particular, the relevant State Minister and representative body have received notice of the application and public notice was given in the Koori Mail and the Coffs Coast News.

34    In submissions, the first respondent noted the evidence as to the following compliance matters:

(1)    The Registrar informed the applicant that the Registrar had provided a copy of the application to the relevant Minister and the representative body;

(2)    The Registrar informed the applicant that the Registrar gave notice to the parties identified in s 66(3) of the NTA;

(3)    Notice of the application was published in the Koori Mail and the Coffs Coast News in accordance with s 66(3) of the NTA;

(4)    The notification day was specified in accordance with s 66(8) of the NTA;

(5)    At the end of the notification period, the Tribunal confirmed that there were no entries on the Register of Native Title Claims that fall within the external boundaries of the non-claimant application in this proceeding; and

(6)    That the areas were identified in the notice by reference to Lot and Deposited Plan number and that information was supplemented by a map and approximation of the land area.

35    The first respondent noted three comments made by the Full Court in Mace about the notification requirements. First, their Honours noted the desirability in future of using social media for notification purposes: at [92]‍–‍[93]. Secondly, nonetheless, the notification process that referred to newspapers was described by their Honours as “not an objectively unreasonable process”: at [92]. Thirdly, notifications given by the Tribunal were “published in newspapers which, we infer, are reasonably apprehended by the [Tribunal] to reach a greater proportion of Indigenous readers than other newspapers might”: at [92]. The first respondent was satisfied that the formal requirements for the making of the determination have been met.

36    On the evidence provided by the applicant and the respondents, and for the reasons outlined by the first respondent, I accept the submission that the formal requirements have been satisfied.

Disposition of application

37    The applicant has the burden to establish, on the balance of probabilities, that no native title exists in the application area. That can be established by showing that (see Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067 at [48] (Griffiths J)):

(1)    native title has been extinguished; or

(2)    native title does not presently exist, either because it is not claimed or cannot be proved by a native title claimant.

38    The non-claimant application in this proceeding has been made on the second basis.

39    As set out by Jagot J in Wagonga at [10(12)], the assessment of whether native title does not exist must be made by reference to the circumstances of each case and on the evidence adduced to the Court.

The parties’ submissions

40    The applicant submitted that there are parallels between the evidence that was before the Full Court in Mace and what is put before this Court by the applicant:

    there is no approved determination of native title over any part of the application areas;

    no claimant application has been filed; and

    no person or group has sought to be joined to assert a native title interest.

41    The applicant argued that, while there had been a discontinued claimant application in Mace, there has never been a registered native title claim over the application areas in this proceeding; nor over any area within at least 20 kilometres of the application areas.

42    The applicant also pointed to the historical use of the land. The Historical Land Status Report showed that the application areas were the subject of permissive licences for “banana cultivation” (Lot 304) and “banana cultivation and telephone lines” (Lot 306). While it is not clear from the Report when these licences ceased prior to the transfer of the land to the applicant, it is argued that, in any event, the use of the application areas as banana plantations is consistent with the RU2 – Rural Landscape zoning under the Coffs Harbour Local Environmental Plan 2013. Relying on what was said by Jagot J in Wagonga at [421(3)], the applicant argues that this information may be relevant to the Court’s assessment.

43    In its submissions, the applicant also addressed the residual discretion not to make a negative determination even though the burden of proof has been discharged. The applicant submitted that there are no factors to suggest that it would be inappropriate for the negative determination to be made.

44    The first respondent neither supports nor opposes the non-claimant application. The Attorney-General’s submissions outline the legal and evidentiary considerations relevant to non-claimant applications and the onus of establishing that native title does not exist in relation to the application areas. Three particular points are made in response to the applicant’s submissions. First, the first respondent agrees with the applicant that “no claim to hold native title to the [application areas] has been asserted”. Secondly, “it does not necessarily follow, as asserted by the Applicant, that an absence of a historical claimant application allows the Court to be satisfied that native title does not exist merely on the basis that no responses have been given to notifications under s 66 of the [NTA]”. Thirdly, while the first respondent “is not in possession of any material regarding the identity of native title holders for the” application areas, the first respondent “notes that the available records held by the [Tribunal] indicate that native title applications and approved determinations of native title have been historically filed over nearby areas within the broader local government area and region”.

45    Similarly, the second respondent neither supports nor opposes the non-claimant application. Of particular relevance to the non-claimant application in this proceeding, NTSCORP makes four points. First, the absence of responses to a non-claimant application to a public notification process:

is not necessarily a reliable indicator that there are no persons or groups who assert native title in a non-claimant application area, especially a notification process based on newspapers and not on social media, or other forms of media communication, when vast amounts of public and community communications now occur through social media rather than through newspapers.

That lack of response is not conclusive of “the issue of whether there are any persons existing who assert native title rights in relation to” the application areas or areas immediately surrounding or nearby the application areas.

46    Secondly, NTSCORP has not yet produced an anthropological report identifying persons who may hold native title in the application areas. It is envisaged that “at some stage in the future” it will undertake such research “and potentially facilitate and assist the making of a native title determination application in relation to” the application areas or areas immediately surrounding or nearby the application areas. It is likely that laws and customs that cover the application areas also cover areas immediately surrounding or nearby the application areas since the application areas “may be part only of a larger area of land over which there may be existing native title rights and interests”: quoting from Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3 at [87].

47    Thirdly, even where there is no direct evidence of the existence of native title, “it is not inevitable that a determination will be made that native title does not exist”. Fourthly, NTSCORP submitted that the Court’s attention should be directed to the applicant’s submissions “in so far as they apply narrowly to the question whether there should be a negative determination of native title in relation to” the application areas, and “not to any broader issues concerning possible connection to” the application areas or areas immediately surrounding or nearby the application areas “by persons who may hold native title, who have not yet been identified”.

48    In its reply, the applicant submitted that native title claims that do not relate to the application areas “are irrelevant to whether the Applicant has proved, on the balance of probabilities, that native title does not exist in the” application areas. The applicant further submitted that the maps attached to the Smith affidavit and Turner affidavit no 2 confirm that the application areas “ha[ve] never been the subject of a claimant application”. In response to NTSCORP’s submissions, the applicant made the following submissions:

(1)    Contrary to what NTSCORP appears to suggest, the applicant does not seek to prove that there is no native title in nearby areas. “Rather, where the Applicant has referred to matters involving nearby land outside the Application Area, it is for the purpose of demonstrating ‘the nature of the land’ that is the subject of the Application.”

(2)    In that respect, the application areas have been used for banana cultivation for nearly 40 years; it is within a locality that has been extensively cultivated over long periods of time; there are no Aboriginal sites or places recorded within 200 metres of the application areas; there is “no reason to think the land has particular cultural significance or importance under traditional laws or customs”; and this “is consistent with the fact that no native title claims have been asserted over the land”.

(3)    Contrary to the suggestion of the possibility of a future native title application over the application areas, the applicant submits that:

[t]he possibility of a future native title application, which may be made by a group that is presently unknown to the Second Respondent, claiming rights and interests that are presently unknown, over an area which is also unknown but which may cover the present Application Area and land in the vicinity of the Application Area, is not something that should be taken into account by the Court when determining whether it is “appropriate” to make the orders sought by the Applicant.

The applicant has discharged its onus

49    I undertake the analysis mindful of the gravity of the consequences of such a determination. A determination that native title does not exist in the application areas operates in rem against the whole world: Mace at [61] and [66]. However, for the reasons that follow at [50]–[56], I am satisfied on the balance of probabilities that the applicant has established that native title has not been, and is not presently, claimed in the application areas. I am also satisfied that, on the evidence before the Court, there is no real prospect of any claimants being identified. Any possibility of that occurring in the future is presently speculative. Those findings support an inference that native title does not exist in the application areas.

50    First, it is common ground that no native title claim has ever been made over the application areas. While that fact is by no means determinative of the question to be decided, in this case it is evidence of significant weight, militating in favour of a finding that native title does not exist in the application areas. There have been native title claims in surrounding areas, but the maps produced by the applicant show that the areas subject to those other claims are some distance away from the application areas. The applicant asserts that the closest historical claim is at least 20 kilometres away from the application areas. The distances to the various historical claims were not identified by the applicant with any precision. However, the scale provided on the maps indicate that such a submission is accurate, except perhaps in relation to the claim filed on 17 May 1996 on behalf of the Gumbaingerrii Mudjai Elders of Coffs Harbour. However, that 1996 claim area was at least 10 kilometres away and, in any event, was not accepted for registration.

51    I do not accept the applicant’s submission that native title claims that do not relate to the application areas are irrelevant to whether the applicant has proved that native title does not exist in the application areas. The questions are what relevant inferences might be drawn from that evidence and how much weight should be placed on it. On one view, the fact that successful claims have been made in surrounding areas might militate against a finding that native title does not exist in the application areas. If there are persons in surrounding areas with valid native title claims, then that might suggest that there could be other persons with an interest in the application areas. However, on another view, particularly because the historical claims range from 1996 to 2018, an inference might be drawn that the identity of potential claimants and their claims, if indeed they existed, would have already come to light. Because of the number of claims that have been made (eight in total, with five claims leading to a positive determination), I am inclined to draw the latter inference and to give it some weight in favour of the conclusion that native title does not exist in the application areas.

52    Secondly, there is no evidence of any identified person or persons who might make a native title claim. It is important that neither the statutory notification process, nor NTSCORP’s own enquiries of persons in its Notifications Database, revealed any potential native title applicants. NTSCORP is funded to perform the functions of a native title representative body and the information that it can provide about potential claimants is obviously of great importance: see Mace at [31], [86], and [94]. In her affidavit, Ms Jenkins deposed to the fact that the Notifications Database is maintained for the purposes of NTSCORP performing its notification function. There were only six persons or organisations on the database for the application areas, and attempts were made to contact them by email and telephone. The evidence provided was that the non-claimant application was discussed with two of those persons, and advice was received that another had passed away. No response was received to the email notifications, and no requests were made to NTSCORP for facilitation and assistance in relation to the application areas.

53    Thus, not only was there no response to the statutory notification process (in this case, a matter of appreciable weight), but NTSCORP’s more targeted process, designed to notify and identify persons who may have a native title interest, failed to reveal any such persons. There is also no suggestion that NTSCORP’s enquiries have produced any real prospect of such persons coming forward.

54    I give some weight to the fact that an anthropological study is yet to be conducted, and I acknowledge that such a study might reveal persons who have a legitimate claim to make in relation to the application areas. That such a study has not yet been undertaken serves to highlight that the Court’s evaluation proceeds in the face of some uncertainty. That necessarily is the case with non-claimant applications that seek a negative determination. However, on the evidence before the Court, it could not be said that any such future assertion is presently objectively arguable: see Mace at [97]; Wagonga at [10(17)]. It is entirely speculative in relation to the identity of the potential claimants, the nature of the rights that might be claimed, and the area over which the claim might be made. It is evidence merely of the potential for the assertion of native title and carries little weight in the overall assessment. As the Full Court said in Mace at [52] (see also at [54] and [97]):

the Court cannot be asked to decide a non-claimant application by a process of speculation as what native title rights and interests might or might not exist in the land in question. The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant.

55    Evidently, an anthropological study would have been of considerable value to the Court. However, for the reasons given, the fact that such a study has not been undertaken is of little weight in this case: cf Mace at [178]‍–‍[179].

56    Thirdly, I accept the applicant’s submissions that some weight should be given to the fact that there are no Aboriginal sites or places recorded within 200 metres of the application areas. While a range 200 metres is not expansive, it does tend in favour of a finding that no native title exists in the application areas. Conversely, I do not find much assistance in the evidence provided as to the cultivation of the land pursuant to permissive licences. Without more evidence or explanation, it is difficult to assess whether that use was consistent or inconsistent with the non-existence of native title in the application areas. Consequently, it sheds little light on the consistency of such cultivation with the fact that no native title claims have been asserted over the land.

Is it nonetheless inappropriate to make the order?

57    Having reached the conclusion that, on the balance of probabilities, native title does not exist in the application areas, I have reached the further conclusion that there are no other matters that warrant the exercise of my discretion not to make that negative determination. There is nothing to suggest that this is a “rare” case in which the discretion should be exercised to withhold relief: see Mace at [73]; Moller v State of Queensland [2023] FCA 347 at [19] (Kennett J).

Conclusions

58    In conclusion, I am satisfied that the unopposed non-claimant application should be determined without a hearing pursuant to s 86G of the NTA.

59    I also am satisfied that, on the balance of probabilities, native title does not exist in the application areas. In support of that conclusion, I have given significant, although not determinative, weight to the absence of any current or historic native title claims over the application areas, and appreciable weight to the lack of response to the statutory notification process. Importantly, there also is the evidence of unsuccessful attempts by NTSCORP to identify potential claimants, and also the more probable inferences that I have drawn from the numerous successful and unsuccessful native title claims in surrounding areas dating back to 1996, and absence of records evidencing Aboriginal sites or places in the immediate vicinity. I am satisfied on the basis of a combination of these factors that the applicant has discharged its burden of proof that no native title exists in the application areas.

60    Consequently, I am satisfied that a determination should be made that native title does not exist in the areas of land and waters comprised in and known as:

(1)    Lot 304 in Deposited Plan 726479; and

(2)    Lot 306 in Deposited Plan 726479.

61    No order is sought, and I make no findings, in relation to broader issues concerning the possible connection to surrounding areas by persons, yet to be identified, who may have a native title claim over those areas.

62    There will be no order as to costs.

Associate:

Dated:    10 July 2025